News & Events

Employer’s Interests Outweigh Free Speech Rights of Employee Fired for Using Racial Slur

Government employees enjoy more protection than employees of private-sector companies when it comes to speaking their minds about politics or other matters of public concern outside the workplace. A public employee may not be fired or disciplined for engaging in “constitutionally protected” speech. That is, the speech must be on a “matter of public concern,” the employee must be acting in her capacity as a private citizen rather than in her official duties as a government worker, and the talk or comments must outweigh the employer’s interest in “promoting the efficiency of the public services it performs.” That delicate balance was tested in a recent case involving a Nashville government worker who was fired after using the “n” word in a social media post.

Facts

Danyelle Bennett, a white female and an ardent supporter of Donald Trump, worked as a dispatch operator for Metro Nashville’s Emergency Communications Center (ECC), which is in charge of the 911 service. During the 2016 presidential campaign, Bennett wore a Trump sweatshirt and a “Make America Great Again” hat to work on “Superhero Day.” Some coworkers complained, prompting the ECC to ask her to change.

Bennett periodically posted about political matters on her personal Facebook page. In her profile, she identified herself as not only a Metro employee but also an ECC employee.

On election night, Bennett displayed a triumphant post on her Facebook page about Trump’s victory. After one poster commented on her page that “Rednecks” voted for Trump while “n&#$@z” and “latinos” voted for Hillary Clinton, Bennett responded by stating, “Thank god we have more America loving rednecks. Red spread across all America.” She then repeated the original poster’s words that even some “n&3$@z” and “latinos” voted for Trump.

The following morning, Bennett received a notification that a friend and former colleague had commented on her post, asking, “Was the n&#$@z statement a joke? I don’t offend easily, I’m just really shocked to see that from you.” Several other comments taking offense to Bennett’s use of the racial slur followed. At approximately 3:45 p.m., she deleted the entire Facebook post.

The day after the election, Metro Nashville’s HR coordinator began receiving complaints about Bennett’s comment. Two ECC employees came to her office to report the comment, and she also received an anonymous text with a screenshot of Bennett’s post, asking, “When is this ever acceptable?”

The ECC’s director, Michele Donnegan, received an e-mail from the mayor’s office that included a complaint from a constituent. The complainant suggested, based on Bennett’s post, citizens of color should be concerned about placing 911 calls: “If your skin is too dark your call may have just been placed on the back burner.”

The ECC conducted an investigation into the matter and held a hearing where Bennett was able to give her side of the story. Although she acknowledged other employees appeared to be outwardly offended, she stated she believed they were just “playing the victim” and weren’t really offended. In fact, she claimed she was the real victim in the situation and resented being ganged up on.

Donegan later testified she was concerned by what she saw as Bennett’s lack of remorse about her language and the failure to acknowledge it was an issue. After the investigation and the hearing, the center decided Bennett should be fired for using a racial slur. She then filed suit in federal court, alleging the ECC unlawfully fired her in retaliation for exercising her First Amendment right to free speech.

Trial court’s ruling

The trial court believed the key issue was whether Bennett was fired for using the “n” word (1) in isolation or (2) in the context of expressing her views about the outcome of the presidential election. The court concluded the ECC’s documentation revealed it was concerned about the post in its entirety “without ever once referencing a concern [about] something narrower than the post as a whole, such as the stand-alone fact that the [‘n’ word] was used.” Therefore, the court found the appropriate inquiry involved the post in its entirety rather than the “n” word in isolation.

Construing the post in its entirety, the court had little trouble deciding (1) Bennett was acting in her capacity as a private citizen (rather than as an official government worker) when she displayed the post, and (2) the post related to a public concern. “Speech relating to a major election clearly qualifies” as protected free speech, the court said. Thus, it focused on whether her right to display the post outweighed the ECC’s interest in “promoting the efficiency of the public services it performs.”

The ECC principally argued Bennett’s post caused disharmony in the workplace and jeopardized the agency’s public image. While recognizing that preventing disharmony is important, Judge Eli Richardson noted, “The disharmony is far less [severe] in a case like [this one], where [the employee’s] comments were not directed at any [coworkers] or supervisors, and did not reflect or seek to create any dispute with her employer or her [coworkers].”

Although the ECC’s decision maker (Donnegan) reported around six employees complained about Bennett’s post, the court wasn’t persuaded the complaints of six employees alone evinced any meaningful disruption in the workplace. Moreover, Judge Richardson felt Donnegan’s investigation was inadequate and that she “was not very informed as to the seriousness, and actual existing or likely effects, of the complaints.” Although the trial court found the post could undermine the center’s mission, it concluded any potential harm was “relatively slight”:

  • First, Bennett’s post clearly had nothing to do with her position as an ECC employee.
  • Second, the center could identify only one member of the public who expressed concern that Bennett wouldn’t provide appropriate service to African Americans.
  • Third, the court thought it was “highly speculative that even if [any African Americans] were familiar with [her] Facebook comment and [were] offended by it, [they] would be deterred from calling in an emergency.” The court also noted that Bennett was a low-level employee.

Despite remarking “the goal of ECC leadership to head off possible racial tension from [Bennett’s] comment was laudable,” the court concluded her post was protected speech. Accordingly, Judge Richardson reconvened the jury to determine whether the center fired her for engaging in constitutionally protected speech and, if so, what her damages should be. During this phase of the trial, Bennett emphasized that her termination came on the heels of the ECC asking her to remove her pro-Trump paraphernalia during the campaign.

After a two-day trial, the all-white jury determined the ECC unlawfully retaliated against Bennett for displaying the post. Although she sought damages in excess of $100,000, the jury awarded her $6,500 in back pay and $18,750 for humiliation and embarrassment. Bennett v. Metropolitan Gov’t of Nashville, No. 3:17-cv-00630 (M.D. Tenn., June 25, 2019).

6th Circuit’s decision

On appeal, the ECC argued the trial court gave greater protection to Bennett’s speech than the law warrants and improperly minimized the disruption it caused the agency. The U.S. 6th Circuit Court of Appeals (whose rulings apply to all Tennessee employers) reversed the trial court’s decision and remanded (or sent the case back) for further proceedings. In balancing her free speech rights versus the ECC’s interests, the appellate court gave very different weight to the different factors in play:

Internal disharmony stoked. The issue of whether the speech impaired discipline by superiors or harmony among coworkers weighed heavily in the ECC’s favor, according to the 6th Circuit. It stated, “The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC.”

Public’s perception of agency impaired. Beyond causing disruption within the ECC, Bennett’s use of an offensive racial slur on a public platform was highly likely to impair the public’s perception of the center as an unbiased entity, according to the appeals court. It found “a government entity has a significant interest in preserving the legitimacy and credibility of its law enforcement institutions, and, specifically here, the ECC has a stated mission of helping all citizens, regardless of race.”

No apology or remorse shown. Finally, the 6th Circuit found Bennett’s failure to apologize, show remorse, or otherwise recognize the harmful implications of her use of the “n” word suggested any disruptions to the ECC—in both its working relations and its mission to the public—would have been exacerbated by her continued presence at the center.

According to the 6th Circuit, the ECC appropriately concluded Bennett’s continued employment would have impaired its “effective functioning.” Bennett v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 19-5818 (October 6, 2020).

Bottom line

Bennett’s case illustrates how it’s generally much more difficult for public employers to fire or discipline employees than it is for private-sector employers. Had she been in the private sector, her employer most likely would have had little difficulty in carrying out the same termination decision, assuming it didn’t treat her differently than similarly situated employees in a protected class. (Some states have laws prohibiting private employers from taking adverse actions against employees based on off-duty conduct, but there is no such law in Tennessee.)

In the private workplace, in Tennessee and many states, being a Democrat, a Republican, or a member of another political group isn’t a protected class. Therefore, a private-sector employer theoretically could fire all of its employees who post social media comments outside the workplace that are favorable to one political party, provided it has the same policy regardless of the employee’s sex, race, nationality, age, or other protected characteristics. Of course, private-sector employers rarely go to such extremes, but it’s difficult to fathom that they would be sued for firing someone for using the “n” word on social media. In fact, the consequences of turning a blind eye to such conduct, with respect to potential harassment and discrimination claims by other employees, could be much more detrimental to the employer.

As for the ECC, it’s easy to sympathize with its plight, stuck between a rock and hard place. If Bennett had used the “n” word at work, it likely would have been much easier for the center to fire her. The context in which she made the comment, however, made it more difficult to discharge her and created a complicated enough scenario that the trial court and the 6th Circuit viewed the same set of facts entirely differently in terms of the legal ramifications.

The case reinforces the importance of engaging in a comprehensive investigation and consulting with legal counsel before pulling the trigger on a termination decision involving an employee’s use of social media, particularly for employers in the public sector.

THIS ARTICLE ALSO APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER.